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© Law Business Research Ltd 2023
LABOUR &
EMPLOYMENT
2023
Contributing editors
Matthew Howse, K Lesli Liggorner, Walter Ahrens, Michael D Schlemmer and
Sabine Smith-Vidal
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United Kingdom
Matthew Howse and Oliver S Greggoryy
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ggan,, Lewis & Bockius LLP
Summary
LEGISLATION AND AGENCIES 1115
Primary and secondary legislation
1115
Protected employee categories
1116
Enforcement agencies
1117
WORKER REPRESENTATION
1117
Legal basis
1117
Powers of representatives
1118
BACKGROUND INFORMATION ON APPLICANTS 1118
Background checks
1118
Medical examinations
1118
Drug and alcohol testing
1119
HIRING OF EMPLOYEES
1119
Preference and discrimination
1119
Written contracts
1120
Fixed-term contracts
1121
Probationary period
1121
Classification as contractor or employee
1121
Temporary agency staffing
1122
FOREIGN WORKERS
1123
Visas
1123
Spouses
1124
General rules
1124
Resident labour market test
1125
TERMS OF EMPLOYMENT
1126
Working hours
1126
Overtime pay – entitlement and calculation
1126
Overtime pay – contractual waiver
1127
Vacation and holidays
1127
Sick leave and sick pay
1127
Leave of absence
1127
Mandatory employee benefits
1128
Part-time and fixed-term employees
1129
Public disclosures
1129
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LEGISLATION AND AGENCIES
Primary and secondary legislation
1
What are the main statutes and regulations relating to employment?
The main statutes relating to employment are the Employment Rights Act 1996, the Trade
Union and Labour Relations (Consolidation) Act 1992 and the Equality Act 2010. There are
also several other employment laws and regulations in the United Kingdom.
POSTEMPLOYMENT RESTRICTIVE COVENANTS 1130
Validity and enforceability
1130
Post-employment payments
1130
LIABILITY FOR ACTS OF EMPLOYEES 1131
Extent of liability
1131
TAXATION OF EMPLOYEES
1131
Applicable taxes
1131
EMPLOYEECREATED IP AND CONFIDENTIAL BUSINESS INFORMATION
1131
Ownership rights
1131
Trade secrets and confidential information
1131
DATA PROTECTION 1132
Rules and employer obligations
1132
Privacy notices
1132
Employee data privacy rights
1133
BUSINESS TRANSFERS 1133
Employee protections
1133
TERMINATION OF EMPLOYMENT
1134
Grounds for termination
1134
Notice requirements
1134
Dismissal without notice
1135
Severance pay
1135
Procedure
1135
Employee protections
1136
Mass terminations and collective dismissals
1136
Class and collective actions
1137
Mandatory retirement age
1137
DISPUTE RESOLUTION
1138
Arbitration
1138
Employee waiver of rights
1138
Limitation period
1138
UPDATE AND TRENDS
1139
Key developments and emerging trends
1139
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Although employment law in Scotland and Northern Ireland is very similar to that which
applies in England and Wales, there are some differences, particularly in Northern Ireland
concerning discrimination law.
Protected employee categories
2
Is there any law prohibiting discrimination or harassment in employment? If
so, what categories are regulated under the law?
In the United Kingdom, anti-discrimination legislation in the form of the Equality Act 2010
prohibits discrimination across nine protected characteristics: age, disability, gender reas-
signment, marriage and civil partnership, pregnancy and maternity, race (which includes
skin colour, nationality and ethnic or national origin), religion and beliefs, and sex and sexual
orientation.
The term ‘discrimination’ encompasses several concepts and causes of action, as follows:
• Direct discrimination: someone is treated less favourably than another person because
of a protected characteristic that they have (direct discrimination), that they are thought
to have (perception discrimination) or because they associate with someone who has
a protected characteristic (discrimination by association). Age discrimination is the
only type of direct discrimination that can be objectively justified by showing that it is a
proportionate way of achieving a legitimate aim.
• Indirect discrimination: applying a provision, criterion or practice that puts those with a
protected characteristic at a disadvantage that cannot be objectively justified by showing
that it is a proportionate way of achieving a legitimate aim.
• Discrimination arising from disability: unfavourable treatment towards a disabled
person because of something arising as a consequence of their disability that cannot be
objectively justified by showing that the treatment is a proportionate way of achieving a
legitimate aim.
• Reasonable adjustment (applying only in disability discrimination): a duty to make a
reasonable adjustment to the working environment to ensure that a disabled person is
not placed at a substantial disadvantage.
• Equal pay: paying one gender less than the other where their work is the same or equally
valuable work, or has been rated as equivalent in a professional study, and where such
disparity in pay is not justified by a material difference.
• Victimisation: subjecting someone to a disadvantage in retaliation for that person having
availed themself of, or supported, any protections under any discrimination statute.
• Harassment: unwanted conduct related to any protected characteristic having the
purpose or effect of violating dignity or creating an intimidating, hostile, degrading,
humiliating or offensive working environment (with specific provisions for sexual
harassment).
• Third-party harassment: liability of the employer for persistent harassment of an
employee by a third party, provided that it has happened on at least two previous occa-
sions, the employer is aware that it has taken place and the employer has not taken
reasonable steps to prevent it from happening again.
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Individuals are also protected from harassment by the Protection from Harassment Act
1997, provided that there are at least two incidents of harassment and the harasser must
know or ought to know that their actions amount to harassment.
Employees are permitted to ask questions of their employers and it will remain open to a
tribunal to consider how an employer has responded to such questions as a contributory
factor in deciding a discrimination claim.
Also, seeking, making or receiving a relevant pay disclosure (aimed at discovering whether
discrimination in pay is occurring) is protected under the Equality Act 2010. Clauses in
employment contracts that are aimed at ensuring pay confidentiality are unenforceable
insofar as they prevent disclosure for this purpose.
Enforcement agencies
3
What are the primary government agencies or other entities responsible for
the enforcement of employment statutes and regulations?
The enforcement of most employment rights is done through individual claims and actions
to and in the UK employment tribunals and civil courts. Some collective matters (eg, trade
union recognition under a statutory scheme) are dealt with by the Central Arbitration
Committee. His Majesty’s Revenue and Customs is responsible for theenforcement of the
national minimum wage.
The Equality and Human Rights Commission is a public body that has a statutory duty to
promote and monitor human rights, and protect, enforce and promote equality across the
nine protected characteristics provided for in theEquality Act 2010.
WORKER REPRESENTATION
Legal basis
4
Is there any legislation mandating or allowing the establishment of
employees’ representatives in the workplace?
The Transnational Information and Consultation of Employees Regulations 1999 (and its
amending regulations, set forth in 2010) apply to European works councils, and the Information
and Consultation of Employees Regulations 2004 apply to domestic works councils.
Works councils are not mandatory and require an employee request or employer initiative
for establishment. The applicable legislation sets out thresholds for the size and geograph-
ical spread of the relevant workforce for the provisions to apply.
The United Kingdom’s withdrawal from the European Union substantially affects the oper-
ation of European works councils in the United Kingdom. UK employees are still able to
participate in a European works council in certain circumstances if this is permitted by the
agreement that establishes the works council.
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Powers of representatives
5
What are their powers?
There are several circumstances in which an employer must inform and consult with
employee representatives or recognised trade unions, which include but are not limited to:
• business transfers and service provision changes;
• collective redundancies;
• European works council agreements;
• health and safety issues;
• changes to pensions; and
• domestic works council agreements.
Consultation must be undertaken with the aim of reaching an agreement with employee
representatives. There is no requirement to reach an agreement.
BACKGROUND INFORMATION ON APPLICANTS
Background checks
6
Are there any restrictions or prohibitions against background checks on
applicants? Does it make a difference if an employer conducts its own checks
or hires a third party?
The Rehabilitation of Offenders Act 1974 applies, except in respect of certain exceptions
(eg, working with children or vulnerable people and certain other occupations, including
professions such as the medical and legal professions and particular financial sector occu-
pations). The Act prevents certain other employers from refusing to employ someone in
a situation in which an employee or candidate has disclosed or has failed to disclose an
offence that is spent under the Act. The check can be carried out by the employer or a
third party. Disclosure and Barring Service checks are required before an applicant can
work with young children or vulnerable adults and may be desirable in other circumstances
(eg, for professions and occupations covered by the Rehabilitation of Offenders Act 1974
(Exceptions) Order 1975).
Medical examinations
7
Are there any restrictions or prohibitions against requiring a medical
examination as a condition of employment?
Pre-employment health checks or questions are specifically regulated under the Equality
Act 2010. Except in limited prescribed circumstances, pre-employment questions of or
about an applicant are prohibited before an offer of work to the applicant is made, or before
their inclusion in a pool from which candidates for work will be selected.
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Individual offers of employment can be made conditional upon satisfactory health checks,
but a recruiting employer may then render itself liable to discrimination claims if it appears
that an offer is not confirmed based on the information disclosed by the health checks.
Medical reports given by a medical practitioner responsible for a person’s care (rather than
by an independent doctor appointed by the employer) are subject to the Access to Medical
Reports Act 1988, which essentially allows the person the right of prior sight and comment
on the report.
Medical information about a person also constitutes a special category of personal data for
the regime of protection of the Data Protection Act 2018, under the retained EU law version
of the EU General Data Protection Regulation (UK GDPR).
Drug and alcohol testing
8
Are there any restrictions or prohibitions against drug and alcohol testing of
applicants?
General principles derived from the Data Protection Act 2018, the UK GDPR and the Human
Rights Act 1998 suggest that a requirement for drug or alcohol tests should be justified,
necessary and proportionate. Such tests tend, therefore, to be required in the context of
particular roles within the transport and manufacturing sectors (justified by health and
safety considerations), and sometimes also for particular roles within the financial and
other professional sectors.
During employment, even where such tests are appropriately justified, it is recommended that
their use also be reflected in an appropriate provision in the relevant employment contract.
It is rarely appropriate for such tests to be administered by the person’s doctor as the rights
afforded under the Access to Medical Reports Act 1988 would apply to the resulting report.
Issues can arise in such cases, particularly where the requirement to submit the results of
drug or alcohol tests appears unjustified or unjustifiably targeted at particular groups.
HIRING OF EMPLOYEES
Preference and discrimination
9
Are there any legal requirements to give preference in hiring to, or not to
discriminate against, particular people or groups of people?
Positive discrimination is generally unlawful in the United Kingdom; however, there are
certain additional positive requirements imposed on public bodies, and reasonable adjust-
ment in disability discrimination is regarded as a form of partial positive discrimination.
Under the Equality Act 2010, employers in the United Kingdom may (although they are
not required to) take the under-representation of those with protected characteristics into
account when selecting between two equally qualified candidates for recruitment or promo-
tion, provided that there is no automatic selection of members of under-represented groups
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and decisions are not made irrespective of merit (ie, by the use of mandatory quotas, which
is an increasingly common phenomenon in mainland Europe). Regardless of these provi-
sions, the selection of a less-qualified candidate because they are a member of a protected
group remains unlawful.
Written contracts
10
Must there be a written employment contract? If yes, what essential terms are
required to be evidenced in writing?
There is no statutory requirement for a written employment contract. There must, however,
be a statutory statement of particulars that must be provided to the employee or worker
on day one of their employment, incorporating the information set out below. This right
is provided for in section 1 of the Employment Rights Act 1996 and, for this reason, such
statements are commonly referred to as ‘section 1 statements’. Section 1 statements cover:
• the names and addresses of the employee or worker and the employer;
• the start date and the continuous employment commencement date;
• the job title;
• the place of work;
• whether the work is temporary or fixed-term, and the length of the temporary or fixed-
term work if applicable;
• terms relating to work outside the United Kingdom for a period of more than one month;
• remuneration details;
• the hours of work;
• the days of the week on which the employee or worker is required to work and whether
working hours or days may be variable;
• any probationary period that starts at the beginning of the employment relationship,
including any conditions and its duration;
• holidays and holiday pay;
• sickness and sick pay;
• any other paid leave (eg, family-related leave such as maternity or paternity leave, or
time off for public duties);
• the pension;
• any part of any training entitlement that the employer requires the employee or worker
to complete, including any training that it requires but does not pay for;
• any other benefits provided by the employer;
• the notice period;
• collective agreements; and
• disciplinary and grievance procedures.
Therefore, it is common practice in the United Kingdom for all employees to have a written
employment contract with their employers that contains at least the terms set out above.
The right to receive a section 1 statement applies to both employees and workers. In broad
terms, the term ‘worker’ is defined as a third employment status that includes individ-
uals who are neither employees nor self-employed. Typically, workers are individuals who
are less independent than the self-employed and who qualify for some (but not all) of the
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statutory protections afforded to employees. In the context of the right to receive a section
1 statement, section 230 of the Employment Rights Act 1996 defines ‘worker’ broadly as:
an individual who has entered into or works under (or, where the employment has ceased,
worked under)—
(a) a contract of employment, or
(b) any other contract, whether express or implied and (if it is express) whether oral or
in writing, whereby the individual undertakes to do or perform personally any work or
services for another party to the contract whose status is not by virtue of the contract
that of a client or customer of any profession or business undertaking carried on by
the individual.
Certain types of clauses are unlikely to be enforceable unless they are in a written employment
contract; for example, post-termination covenants not to compete, and post-termination
confidentiality and intellectual property protection clauses.
Fixed-term contracts
11
To what extent are fixed-term employment contracts permissible?
Fixed-term employment contracts are permissible; however, certain rights and protec-
tions are given by the Fixed-Term Employees (Prevention of Less Favourable Treatment)
Regulations 2002. There is no maximum duration of such contracts, but successive fixed-
term contracts of four or more years will automatically be deemed to be permanent
contracts with the employer unless objectively justified by the employer.
Probationary period
12
What is the maximum probationary period permitted by law?
There is no maximum period. Customarily, employers will impose a period of six months or
less. This probationary period may be extended at the discretion of the employer if stated in
the employment contract.
Classification as contractor or employee
13
What are the primary factors that distinguish an independent contractor from
an employee?
An employee is someone required to perform work under the control of an employer and the
employee has no power to substitute their labour. An employment relationship is also char-
acterised by the fundamental mutual obligations to personally perform work (employee),
and to provide and pay for it (employer).
There is no single determinative test for employment. Various factors will be considered,
including the amount of control exercised over a person by the hirer, whether the person is
required to personally provide the services and the extent to which the person is integrated
within the hirer’s business.
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An independent contractor is in business on their own account, takes profits, bears losses
and risks, and controls their own work product. They normally (subject to limited exceptions)
have the power to substitute labour. Determination of employee or independent contractor
status is a question of substance over form.
Temporary agency staffing
14
Is there any legislation governing temporary staffing through recruitment
agencies?
The Agency Workers Regulations 2010 implement EU law to guarantee that basic employ-
ment conditions are no less favourable for temporary agency workers, and that such workers
have equal access to facilities and opportunities as permanent staff. The Regulations provide
two different classes of rights: those that are provided as soon as the agency worker starts at
the company (day one rights) and those that are granted after 12 weeks of continuous work.
Day one rights stipulate that temporary agency workers must be provided with the same
access to collective facilities and amenities that the hirer would offer to its own employees.
Temporary agency workers are also protected from less favourable treatment (unless this
can be objectively justified) and must be provided with information about job vacancies.
Once a temporary agency worker has completed 12 weeks of continuous work for the hirer,
they are entitled to the same basic working and employment conditions as a comparable
worker employed by the hirer. This means that they are entitled to the same pay, duration
of working time, and conditions concerning night work, rest periods and annual leave as a
comparable worker employed by the hirer. Since 6 April 2020, temporary agency workers
who have entered into a pay between assignments contract (previously exempt from pay
parity) have also been entitled to equal treatment concerning pay.
The Agency Workers Regulations 2010 stipulate how liability for breaches of these rights will
be apportioned between the hirer and the recruitment agency. In certain circumstances, if
the recruitment agency can demonstrate that it has satisfied conditions in respect of taking
reasonable steps to ensure that the hirer complies with the Regulations, liability for certain
breaches will pass to the hirer.
The Employment Agencies Act 1973 and the Conduct of Employment Agencies and
Employment Businesses Regulations 2003, as amended, also regulate staffing through
recruitment agencies. In particular, this legislation:
• prohibits a recruitment agency or employment business from charging temporary
agency workers a fee for finding them work;
• prescribes the terms that must be agreed upon by temporary agency workers; and
• limits the transfer fees that may be charged to a hirer if a temporary agency worker
becomes directly engaged by their hirer.
Until 21 July 2022, the Conduct of Employment Agencies and Employment Businesses
Regulations 2003 also prohibited recruitment agencies and employment businesses from
providing temporary agency workers to hirers to replace employees taking part in official
industrial action. However, as of 21 July 2022, this prohibition was revoked through amending
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regulations. This means that it is, in theory, now possible for recruitment agencies and
employment businesses to engage temporary agency workers to cover official strikes.
It remains to be seen to what extent this will happen in practice as there are practical,
commercial and industrial relations reasons that are likely to make this option unattractive
to employers and recruitment agencies or employment businesses alike.
A number of trade unions have brought judicial review proceedings to challenge the lawful-
ness of these amending regulations on the basis of consultation failures and human rights
grounds. The High Court has granted permission for the review to proceed and it is likely
that it will be heard in 2023.
FOREIGN WORKERS
Visas
15
Are there any numerical limitations on short-term visas? Are visas available
for employees transferring from one corporate entity in one jurisdiction to a
related entity in another jurisdiction?
There is no limit on the number of visas that may be issued annually.
Unless a foreign national qualifies as being exceptionally talented, an entrepreneur or a
person with high potential, foreign employees must be sponsored by an employer before
they can obtain entry clearance and authority to work in the United Kingdom. An employer
must have obtained a sponsorship licence from the Home Office before it can sponsor
foreign employees to work for it in the United Kingdom. The two principal visas available for
both European Economic Area and non-European Economic Area nationals coming to the
United Kingdom, which are issued through a points-based system, are the Skilled Worker
visa and the Senior or Specialist Worker (Global Business Mobility) (GBM) visa.
Skilled Worker visas
Skilled Worker visas are for foreign nationals coming to the United Kingdom to do an eligible
job with an approved sponsor. Some foreign nationals who are already in the United Kingdom
may also be eligible to switch onto Skilled Worker visas from within the United Kingdom.
The foreign national must satisfy the eligibility and points criteria, and be able to evidence
this as part of the visa application process.
Skilled Worker visas can be extended indefinitely for periods of five years at a time. After five
years of continuous residence in the United Kingdom, the foreign employee may be eligible
to apply for indefinite leave to remain in the United Kingdom (ie, settlement). If a foreign
employee does not extend their visa or apply for another applicable immigration permis-
sion, sufficient evidence (specified by the Home Office) must be maintained to evidence the
date that the foreign employee permanently left the United Kingdom or the expiry of their
visa, whichever is sooner.
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GBM visas
GBM visas are available for foreign employees of multinational companies who are transfer-
ring from one overseas corporate entity to undertake an assignment in a skilled job with a
related entity in the United Kingdom. These employees must also satisfy the points criteria
and will be required to demonstrate this as part of the entry clearance process.
GBM visas can be extended up to a maximum of five years, or nine years if the employee
receives a gross annual salary equivalent to £73,900 or more. It is not possible to hold
a GBM visa for more than five years in any six-year period, or nine years in any 10-year
period if their gross annual salary is £73,900 or more. It is not possible to use time spent
in the United Kingdom under the GBM route towards a future indefinite leave to remain
application.
Spouses
16
Are spouses of authorised workers entitled to work?
A dependent spouse or partner of a Skilled Worker or GBM visa holder is permitted to work
in the United Kingdom (except as a professional sportsperson, including as a sports coach),
provided that they make an entry clearance application and that the Skilled Worker or GBM
visa holder can support their spouse without recourse to public funds.
General rules
17
What are the rules for employing foreign workers and what are the sanctions
for employing a foreign worker who does not have a right to work in the
jurisdiction?
There are laws in place that prevent illegal working in the United Kingdom. An employer
can face penalties if it employs a person aged 16 or over who does not have permission
to be or work in the United Kingdom. An employer found guilty of an offence could face a
civil penalty of up to £20,000 for each employee who has been employed illegally. There are
defences against these penalties if the employer accurately completes a right to work check
(either manually, where the employee’s original documents such as a passport are checked,
verified and copied by the employer, or by using the online Right to Work Checking Service)
before the employee commences work. In the case of employees who have only a limited
right to remain in the United Kingdom, these checks must be repeated on the expiry of their
right to remain.
Where, however, an employer is found to have knowingly hired workers illegally, the
maximum penalty is a five-year prison sentence or an unlimited fine, or both.
Skilled Worker and GBM visas are employer-sponsored immigration categories. Permissions
under the Skilled Worker and GBM routes only allow the person to work for the employer
entity that sponsors them and up to an additional 20 hours per week in a similar role for
another employer (provided that the additional work is not in place of the originally spon-
sored employment). A precondition for Skilled Worker and GBM visas is that the UK entity
has a sponsorship licence (granted by the Home Office).
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A Global Talent visa, if granted, is personal to the holder, meaning that they can then work
for any employer or work on a self-employed basis for the duration of the visa (which is
normally issued for a five-year period).
Start-up and Innovator visas only permit a person to work for the company in which they
have invested.
Resident labour market test
18
Is a labour market test required as a precursor to a short or long-term visa?
On 1 December 2020, the Home Office removed the requirement for employers to conduct
a resident labour market test. This has instead been replaced with a genuineness require-
ment, which means that employers must only sponsor a foreign national through the
Skilled Worker route where they have a genuine vacancy for the role in the United Kingdom.
Employers must retain sufficient evidence –such as copies of any adverts posted or the
recruitment process undertaken for the role – to evidence the genuine vacancy.
If the employer advertised the role, they must retain all of the following:
• Details of any advertisements placed.There is no specified minimum number of adverts
the employer must place or prescribed methods of advertising. Where the employer has
placed more than one advert, it should retain evidence of all adverts placed. Examples
of evidence include:
• a screenshot, printout or photocopy of the advert;
• a record of the text of the advert; and
• information about where the job was advertised (eg, website address) and for how long.
• A record of the number applicants for the job and the number of applicants shortlisted
for interviews or for other stages of the recruitment process.
• At least one other item of evidence or information that shows the process used to iden-
tify the most suitable candidate. Employers do not have to retain application forms,
CVs, interview notes or any other personal data relating to unsuccessful candidates.
Examples of evidence include:
• copies or summaries of the interview notes for the successful candidate;
• lists of common interview questions used for all candidates as part of the selec-
tion process;
• brief notes on why the successful candidate was selected and why other candidates
were rejected;
• information about any scoring or grading process used to identify the successful
candidate; and
• any other relevant information or evidence.
If the employer did not advertise the role, it must, if asked, be able to explain (and, where
practicable, provide evidence of) how it identified that the candidate was suitable. Examples
include, but are not limited to, if the employer:
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• identified the candidate through a university careers fair;
• the candidate was already legally working for the employer through another immigra-
tion route and the employer established that the candidate was suitable for the role
through their previous performance; and
• the candidate applied to the employer outside of a formal advertising campaign (ie,
made a speculative application) and the employer was satisfied (eg, by interviewing the
candidate, or checking references or qualifications) that they had the necessary skills
and experience to do the job.
TERMS OF EMPLOYMENT
Working hours
19
Are there any restrictions or limitations on working hours and may an
employee opt out of such restrictions or limitations?
The Working Time Regulations 1998 limit working hours as follows:
• a 48-hour maximum working week calculated as an average over a 17-week period (the
maximum working week is reduced for employees under the age of 18); and
• an individual opt-out clause by written agreement (employees under the age of 18
cannot opt out).
These Regulations also govern shift work, night work and paid annual leave.
Now that the United Kingdom has left the European Union, the UK government may, in
theory, amend the Working Time Regulations 1998 as an individual measure. It is also
possible that the Retained EU Law (Revocation and Reform) Bill 2022 –2023, if enacted, could
impact the interpretation and effect of the Regulations as well as that of other EU-derived
laws. However, the government has made public comments about not diluting workers’
rights following the United Kingdom’s exit from the European Union. Further, the wording of
the EU–UK Trade and Cooperation Agreement requires the United Kingdom to not reduce
certain fundamental employment law protections below their current levels in a manner
that affects trade or investment. The European Union could apply tariffs on the United
Kingdom if material impacts on trade and investment arise as a result of significant diver-
gences between UK and EU employment standards. Certain amendments to the Working
Time Regulations 1998 (eg, removing the requirement to opt out of the 48-hour maximum
working week) may affect trade or investment by giving UK companies a competitive advan-
tage. Accordingly, any fundamental changes are considered unlikely.
Overtime pay – entitlement and calculation
20
What categories of workers are entitled to overtime pay and how is it
calculated?
Overtime pay is not governed by specific legislation but is generally a matter of indi-
vidual or collective agreement. The National Minimum Wage Act 1998 and the National
Minimum Wage Regulations 2015, as amended, govern an employer’s obligation to pay a
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certain minimum amount per hour, which may render unpaid overtime unlawful in certain
circumstances.
Overtime pay – contractual waiver
21
Can employees contractually waive the right to overtime pay?
There is no statutory right to overtime pay; it is a matter for a contract, so an employment
contract will commonly confirm that no overtime pay is payable. It is possible to include a
clause within an employment contract to confirm that the employee is not entitled to receive
overtime payments in respect of any additional hours that are worked.
Vacation and holidays
22
Is there any legislation establishing the right to annual vacation and holidays?
The Working Time Regulations 1998 establish a statutory entitlement to 5.6 weeks (or 28
days) of leave per annum (inclusive of bank and public holidays), which is paid. Accrual
is monthly and is paid in lieu only on termination. Special provisions apply to part-time
employees.
Sick leave and sick pay
23
Is there any legislation establishing the right to sick leave or sick pay?
The Social Security Contributions and Benefits Act 1992, as amended, and the Statutory
Sick Pay (General) Regulations 1982, as amended, govern the UK statutory sick pay scheme.
The Social Security Contributions and Benefits Act 1992, as amended, entitles qualifying
employees who are absent for four or more consecutive days (including weekends) to receive
a statutory minimum weekly payment. Employees cannot receive any payment for the first
three days of absence.
Statutory sick pay is paid for up to 28 weeks in any period of incapacity or in any series
of linked periods of incapacity (ie, any periods that are not more than eight weeks apart).
Statutory sick pay stops at three years even if an employee has not yet been paid for 28
weeks of absence.
Leave of absence
24
In what circumstances may an employee take a leave of absence? What is the
maximum duration of such leave and does an employee receive pay during the
leave?
The principal statutory leaves of absence are set out in the table below. Note that ‘paid at
the statutory rate’ does not mean full contractual pay; it is an amount set by the govern-
ment but paid by the employer. Employers should be able to recover a large percentage
of this amount from the government. Also, some employers may choose to pay enhanced
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maternity, paternity, adoption or shared parental pay and benefits, among others. Leave
may also be provided for by contract or as otherwise agreed.
Type Length Compensation
Maternity leave Up to 52 weeks
Up to 39 weeks paid at the
statutory rate
Adoption leave Up to 52 weeks
Up to 39 weeks paid at the
statutory rate
Paternity leave Two weeks Paid at the statutory rate
Shared parental leave* Up to 50 weeks
Up to 37 weeks paid at the
statutory rate†
Parental leave‡ 18 weeks for each child Unpaid
Parental bereavement leave Two weeks Paid at the statutory rate
Dependant leave
Reasonable time off needed to
deal with emergencies
Unpaid
Jury service Length of jury service Unpaid
*
Can only be taken when a new mother or new adoptive parent has given the requisite notice
to end their maternity or adoption leave, and the remainder of their leave will be available as
shared parental leave. Shared parental leave will enable new parents to take leave together or
to split the leave period between them. It is also possible for new parents to determine how the
shared parental pay will be divided between them.
†
Accounts for the two-week period of compulsory maternity leave and equivalent two-week
period of adoption leave.
‡
Available to each parent.
Mandatory employee benefits
25
What employee benefits are prescribed by law?
Legislation came into force in October 2012 through the Pensions Act 2008 that requires
employers to automatically enrol eligible job holders into a qualifying workplace pension
scheme. The obligations on employers have been brought into force in stages over a five-
and-a-half-year period, depending on the size of the employer.
Eligible job holders must be between the age of 22 and the state pension age, and must earn
a statutory minimum amount. Employers will need to determine whether existing pension
schemes comply with the requirements to be qualifying pension schemes. Alternatively,
the government has set up the National Employment Savings Trust, which is available for
employers to use to comply with the duty of auto-enrolment.
Overall employee and employer contributions to the qualifying pension scheme must total 8
per cent, with a minimum of 3 per cent being paid by the employer and the remainder being
made up of employee contributions and tax relief. Contributions by the employer and the
employee are limited to qualifying earnings (ie, earnings between two specific lower and
upper thresholds). The earnings thresholds are reviewed each tax year. For the 2022 to 2023
tax year, the thresholds were £6,240 and £50,270, respectively, and the Department for Work
and Pensions has announced that these thresholds will remain unchanged for the 2023 to
2024 tax year.
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Part-time and fixed-term employees
26
Are there any special rules relating to part-time or fixed-term employees?
The Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002
grant employees (unless objectively justified) the right:
• to the same terms and conditions as comparable permanent employees; and
• not to suffer a detriment or unfair dismissal because of their fixed-term status.
Successive fixed-term contracts for four or more years will automatically be deemed to be
permanent contracts with the employer, unless objectively justified by the employer.
The rules relating to part-time workers are governed by the Part-Time Workers (Prevention
of Less Favourable Treatment) Regulations 2000, which grant such workers (unless objec-
tively justified) the right:
• to the same terms and conditions as comparable full-time workers; and
• not to suffer a detriment or unfair dismissal because of their part-time status.
Public disclosures
27
Must employers publish information on pay or other details about employees
or the general workforce?
The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 impose an obligation
on private- or voluntary-sector employers with 250 or more employees on the snapshot date
(which is 5 April in the relevant year) to publish certain data in respect of the employers’
gender pay gaps on an annual basis. The definition of ‘relevant employees’ for the purposes
of the Regulations does not include partners but does include casual workers and certain
contractors.
Employers are required to publish the following information on their own websites and
upload it to the government’s gender pay gap services website:
• the gender pay gap (mean and median averages between men’s and women’s hourly pay);
• the gender bonus gap (mean and median averages between bonus pay awarded to men
and women);
• the proportion of men and women receiving bonuses; and
• the proportion of men and women in each quartile of the employer’s pay structure.
The data will remain accessible to the public for three years, which will allow comparisons
to be drawn year on year and across industry sectors.
Employers are required to provide a written statement confirming that their gender pay gap
information is accurate. The confirmation statement must be signed by a senior person,
such as a director. Although it is not mandated by the Regulations to include an accom-
panying narrative, many employers choose to do so, and the Advisory, Conciliation and
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Arbitration Service guidance on the reporting requirements encourages the provision of a
narrative to contextualise the data.
The Regulations do not contain any enforcement mechanisms or sanctions for failure
to comply with the reporting obligations or for publishing inaccurate data. However, the
government has indicated that it will run periodic checks to assess non-compliance, and
the Equality and Human Rights Commission has stated that it will use its existing powers to
take enforcement action in respect of a failure to comply with the Regulations.
Having consulted on proposals to introduce mandatory ethnicity pay reporting alongside
gender pay gap reporting, in 2022, the government confirmed that ethnicity pay reporting
will remain voluntary for the time being. The government has committed to supporting
employers who wish to publish their ethnicity pay gap data with new guidance and has
consulted on draft standards for such data.
POSTEMPLOYMENT RESTRICTIVE COVENANTS
Validity and enforceability
28
To what extent are post-termination covenants not to compete, solicit or deal
valid and enforceable?
Post-termination covenants are assumed to be unenforceable as restraints of trade under
UK public policy unless:
• they go no further than is reasonably necessary in scope, duration and geographical
extent to protect an employer’s legitimate business interests from the actions of the
employee in question; and
• they do not otherwise offend public policy.
There is no maximum duration for post-termination covenants; however, restrictions
lasting more than 12 months are unlikely to be enforceable in the United Kingdom except in
exceptional circumstances. Even a full 12 months will only be justified for the most senior
employees or in special circumstances (eg, where an employee may do a great deal of
damage to an employer’s business because of their knowledge of the employer’s confiden-
tial or proprietary information).
Post-employment payments
29
Must an employer continue to pay the former employee while they are subject
to post-employment restrictive covenants?
There is no requirement for an employer to continue to pay a former employee while they
are subject to post-employment restrictive covenants.
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LIABILITY FOR ACTS OF EMPLOYEES
Extent of liability
30
In which circumstances may an employer be held liable for the acts or
conduct of its employees?
At common law, employers are vicariously liable to third parties for acts and omissions
of employees in the course of their employment. Employers are vicariously liable for the
discriminatory acts and omissions (including harassment) by their employees in the course
of employment (where ‘course of’ has a broader meaning than at common law) and where
an employer has failed to take reasonably practicable preventive steps.
TAXATION OF EMPLOYEES
Applicable taxes
31
What employment-related taxes are prescribed by law?
The deduction at source of income tax and employer and employee National Insurance
contributions (ie, social security) under the UK pay-as-you-earn system is mandated by the
Income Tax (Earnings and Pensions) Act 2003.
EMPLOYEECREATED IP AND CONFIDENTIAL BUSINESS INFORMATION
Ownership rights
32
Is there any legislation addressing the parties’ rights with respect to employee
inventions?
Employee inventions are addressed by the Patents Act 1977 and the Copyright, Designs and
Patents Act 1988. Generally, any intellectual property that is created by an employee in the
course of their employment in the United Kingdom will belong to the employer. However, it
is common for there to be an express provision in the employment contract to ensure that
this is the case.
Trade secrets and confidential information
33
Is there any legislation protecting trade secrets and other confidential
business information?
Confidential information and trade secrets are governed by the Trade Secrets (Enforcement,
etc) Regulations 2018 (SI 2018/597), which came into force on 9 June 2018 and implement
the EU Trade Secrets Directive 2016/943. The Regulations are intended to operate alongside
the common law of confidence.
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DATA PROTECTION
Rules and employer obligations
34
Is there any legislation protecting employee privacy or personnel data? If so,
what are an employer’s obligations under the legislation?
The Data Protection Act 2018 and the retained EU law version of the EU General Data
Protection Regulation (UK GDPR) are the primary legal instruments that protect employees’
data. The Data Protection Act 2018 provides a comprehensive and modern framework for
data protection in the United Kingdom with strong sanctions for malpractice.
There are six data processing principles provided by the UK GDPR, which are that
personal data is:
• to be processed fairly, lawfully and transparently;
• to be processed for specified, explicit and legitimate purposes, and not processed in a
manner that is incompatible with those purposes;
• to be adequate, relevant and not excessive;
• to be accurate and up to date;
• not to be kept longer than necessary; and
• to be processed in a manner that ensures appropriate security of the personal data,
including protection against unauthorised or unlawful processing and accidental loss,
destruction or damage, using appropriate technical or organisational measures.
Privacy notices
35
Do employers need to provide privacy notices or similar information notices to
employees and candidates?
The UK GDPR creates an obligation on employers as data controllers to notify employees
of their personal data handling practices through a privacy notice at the time the data is
collected from the employee. If data is collected from another source, privacy information
must be provided to the employee within one month.
At the recruitment stage, candidates will also need to be provided with a privacy notice. This
can be a short-form privacy notice concerning the processing of their personal data for the
purposes of the recruitment exercise only.
A privacy notice informs candidates and employees about how the employer collects, uses,
stores, transfers and secures personal data. Employers are advised to undertake an infor-
mation audit to find out what personal data they hold and what they do with it. The UK GDPR
stipulates what information must be included in a privacy notice and requires the infor-
mation to be presented in a concise, transparent, intelligible and easily accessible form.
As a matter of good practice, employers should publish their privacy policy on their busi-
ness websites.
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Employee data privacy rights
36
What data privacy rights can employees exercise against employers?
Under the UK GDPR, employees (and indeed all data subjects) have the rights listed below,
which are otherwise known as ‘delete it, freeze it, correct it’ rights. These rights are gener-
ally exercised or triggered if there is non-compliance with data protection principles. These
rights are the right:
• to erasure or be forgotten;
• to rectification;
• to restriction of processing;
• to object to processing;
• to information;
• to access their own personal data;
• to receive a copy of their personal data;
• not to be subject to automated decision-making; and
• to be notified of a data security breach.
Employers must take particular note of an employee’s right to makea data subject access
request to their employers for disclosure of personal data and certain information regarding
the personal data that is held about them. Employers are under an obligation to comply
without undue delay and within one month, with an extension of two additional months if
necessary. Given the complexity of most data subject access requests in an employment
context, the likely normal period for compliance will be up to three months. However, where
a request is manifestly unfounded or excessive, employers may either charge a reasonable
fee (taking into account administrative costs) or may refuse to act on the request altogether.
BUSINESS TRANSFERS
Employee protections
37
Is there any legislation to protect employees in the event of a business
transfer?
Where there is no change in the identity of the employer (eg, a share disposal) the
employees’ contracts of employment continue. All rights, duties and liabilities owed by or
to the employees continue, and the buyer of the employer’s shares inherits all those rights,
duties and liabilities as the new owner of the employer.
By contrast, the Transfer of Undertakings (Protection of Employment) Regulations 2006,
as amended by the Collective Redundancies and Transfer of Undertakings (Protection of
Employment) (Amendment) Regulations 2014 (together, TUPE), give special protection
for the rights of employees on the transfer of an undertaking where there is a relevant
transfer. This includes a sale of assets or business activity, or a change of service provider
(outsourcing). The TUPE creates:
•
particular unfair dismissal rights in the context of a TUPE transfer;
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• the automatic transfer principle whereby (subject to a few exceptions) the buyer inherits
all rights, liabilities and obligations concerning the assigned employees; and
• the obligation to inform and consult with the representatives of the affected employees,
and liabilities for failure to do so by way of a penal award of up to 13 weeks of actual pay
for each affected employee.
TERMINATION OF EMPLOYMENT
Grounds for termination
38
May an employer dismiss an employee for any reason or must there be
‘cause’? How is cause defined under the applicable statute or regulation?
Contractually, at common law, an employer can dismiss an employee for any reason,
provided that appropriate notice is given.
Statutorily, if the employee has the relevant qualifying length of service (if applicable), they
may be dismissed only for potentially fair reasons pursuant to section 98 of the Employment
Rights Act 1996, which are:
• capability;
• conduct;
• redundancy;
• breach of a statutory enactment on the part of the employee or the employer; or
• another substantial reason.
Notice requirements
39
Must notice of termination be given prior to dismissal? May an employer
provide pay in lieu of notice?
Notice of at least the statutorily prescribed minimum must be given before dismissal, as set
out in the table below.
Length of service Notice period
Up to 1 month None
1month to 2 years 1 week
2to 12 years 1week for each year of completed employment
More than 12 years 12 weeks
UK employers provide additional notice as a matter of custom in the employment contract.
Where this is the case, the contractual notice must be given by the employer. Payment in
lieu of notice can be given if set out in the employment contract.
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Dismissal without notice
40
In which circumstances may an employer dismiss an employee without notice
or payment in lieu of notice?
Dismissal without notice or pay in lieu of notice may occur only in cases of gross misconduct
(ie, misconduct of a very serious nature including that which the employer is justified in
treating as very serious in the context of its business). A non-exhaustive list of examples of
gross misconduct must be set out by the employer and relayed to each employee. The list is
usually contained in the employment contract.
Severance pay
41
Is there any legislation establishing the right to severance pay upon
termination of employment? How is severance pay calculated?
Under the Employment Rights Act 1996, statutory redundancy pay exists for employees with
two or more years of service. The exact amount is linked to the length of service, the age of
the employee and the statutory cap on weekly pay.
Redundancy pay may be enhanced by the employer, including by custom and practice.
Procedure
42
Are there any procedural requirements for dismissing an employee?
Individual dismissals
An employer must act reasonably under the Employment Rights Act 1996 for a potentially
fair reason if it is dismissing an employee with at least two years of continuous service.
Employers carrying out dismissals (except for dismissals on the grounds of redundancy or
the non-renewal of a fixed-term contract) should also follow the principles set out by the
Advisory, Conciliation and Arbitration Service (ACAS), which is a public body, in its Code of
Practice (where applicable). A failure to follow the ACAS Code of Practice does not in itself
make an employer liable to a claim; however, employment tribunals will take the ACAS Code
of Practice into account when considering relevant cases and can adjust any awards they
make by up to 25 per cent for unreasonable failure by an employer to follow the ACAS Code
of Practice.
Collective dismissals
Prior approval by the UK government is not required by law; however, if the employer
proposes to make redundancies affecting 20 or more employees within a particular time
frame, it must notify the Department for Business, Energy and Industrial Strategy. Collective
consultation with representatives of the affected employees is also required.
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Employee protections
43
In what circumstances are employees protected from dismissal?
Ordinarily, employees with two years of service have general statutory protection from unfair
dismissal.
Automatic unfair dismissal protection but require two years of service apply to dismissals:
• owing to a spent conviction;
• in the context of a transfer under the Transfer of Undertakings (Protection of
Employment) Regulations 2006, as amended by the Collective Redundancies and
Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014
(together, TUPE); and
• relating to the exercise of certain rights by temporary agency workers.
Dismissals in most other contexts that have automatic unfair dismissal protection do not
require any qualifying length of service. These include:
• jury service;
• leave for family reasons and related leave for time off for dependants;
• health and safety activities;
• Sunday working;
• asserting certain statutory rights;
• asserting rights under the Working Time Regulations 1998;
• employee trustees of occupational pension schemes;
• employee consultation representatives or candidates (including European and domestic
works councils);
• whistle-blowers;
• flexible working requests;
• certain discrimination-related dismissals;
• exercising the right to be accompanied at disciplinary or grievance hearings;
• the rights of part-time employees;
• the rights of fixed-term employees;
• in connection with entitlement to a national minimum wage and to working tax credits;
• in connection with the right to request study and training; and
• trade union membership or activities, or official industrial action.
A dismissal is automatically unfair if it is because of protected activity; that is, it is causally
connected to a protected activity.
Dismissals can also attract protection under anti-discrimination legislation.
Mass terminations and collective dismissals
44
Are there special rules for mass terminations or collective dismissals?
A special information and consultation regime applies where there are 20 or more affected
employees who are proposed to be dismissed for a non-fault reason within a particular
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time frame. Protective awards exist of up to 90 days of pay per affected employee for the
employer’s failure to consult. This is governed by section 188 of the Trade Union and Labour
Relations (Consolidation) Act 1992.
Also, if the employer proposes to make redundancies affecting 20 or more employees within
a particular time frame, it must notify the Department for Business, Energy and Industrial
Strategy. Collective consultation with the representatives of the affected employees is
also required.
Class and collective actions
45
Are class or collective actions allowed or may employees only assert labour
and employment claims on an individual basis?
There is no direct equivalent to the US class action in the United Kingdom. However, there
are procedural means of dealing with group actions of multiparty claims that allow groups
of claimants to link the claims to proceed against a single defendant, as follows:
• Where more than one person has the same interest in a claim, the claim may be begun
or the court may order that one or more claimants, or one or more defendants, bring or
defend the claim representing others who have the same interest in the claim. Any judg-
ment will be binding on all individuals represented unless the court directs otherwise.
• Where claims by several individuals give rise to common or related issues of fact or law,
the court may make a group litigation order to manage the claims. Judgments, orders
and directions of the court will be binding on all claims within the group litigation order.
In the context of collective consultation and the TUPE, an employee representative brings
the claim for a failure to inform and consult, and failure to consult on a collective basis
on behalf of the affected employees. If successful, compensation is awarded to each
affected employee.
Mandatory retirement age
46
Does the law in your jurisdiction allow employers to impose a mandatory
retirement age? If so, at what age and under what limitations?
Any age-related compulsory retirement must be justified under anti-age discrimination
legislation (ie, the Equality Act 2010) and must be fair under unfair dismissal legislation (ie,
the Employment Rights Act 1996). Compulsory retirement on medical grounds also has the
potential to raise discrimination (principally, disability and age discrimination) and unfair
dismissal issues.
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DISPUTE RESOLUTION
Arbitration
47
May the parties agree to private arbitration of employment disputes?
In contractual disputes, parties may agree to private arbitration of employment disputes,
provided that such disputes do not involve statutory employment protection rights.
Where statutory employment protection rights are affected, an employee cannot validly
agree, in advance, to give up their right to litigate those rights (eg, an employee cannot
agree in their employment contract, entered into before the dispute arose, not to sue their
employer for unfair dismissal).
Once a dispute has arisen, private mediation agreed to between the parties is relatively
common. Any settlement of a dispute about statutory employment protection rights
(including one agreed to during mediation) must satisfy the statutory contracting out
requirements if the relevant statutory right is to be validly compromised.
Employee waiver of rights
48
May an employee agree to waive statutory and contractual rights to potential
employment claims?
An employee can agree to waive their contractual rights. An employee may only waive statu-
tory rights with a valid statutory settlement agreement or through an officer of the Advisory,
Conciliation and Arbitration Service (ACAS)on Form COT3, which is an official form used by
ACAS to evidence a binding legal settlement between employers and employees.
The requirements for a valid waiver are as follows, with regard to a statutory settlement
agreement:
• it must be in writing;
• it must relate to specific proceedings;
• independent legal advice must have been given to the employee;
• the independent adviser must have insurance for negligence;
• the agreement must identify the adviser; and
• the agreement must state that the conditions regulating settlement agreements are
satisfied.
Limitation period
49
What are the limitation periods for bringing employment claims?
The limitation periods are set out in the table below.
Employment claim Limitation period
Ordinary unfair dismissal and
automatic unfair dismissal
Within three months of the date of termination
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Employment claim Limitation period
Discrimination Within three months of the date of the act complained of
Equal pay
Six months as of the date of termination of the relevant contract
(tribunals can make awards to cover pay disparity going back six
years)
Redundancy pay Six months as of the date of redundancy
Unlawful deduction of wages Within three months as of the date of deduction
Specific provisions deal with discrimination by omission and for continuing acts that extend
over some time.
The standard limitation period for a breach of contract claim is six years, although some
such claims can be litigated in an employment tribunal but are subject to a much shorter
limitation period.
The primary limitation period applicable to the various statutory employment protection
rights may be extended in appropriate circumstances by an employment tribunal. The
tribunal’s jurisdiction to extend the time limit applicable to discrimination rights provides it
with a wider jurisdiction to do so than in the context of other statutory employment protec-
tion rights.
UPDATE AND TRENDS
Key developments and emerging trends
50
Are there any emerging trends or hot topics in labour and employment
regulation in your jurisdiction? Are there current proposals to change the
legislation?
Potential impact of Retained EU Law (Revocation and Reform) Bill 2022–2023
As at January 2023, the United Kingdom’s exit from the European Union has had a relatively
minimal impact on employment law. Generally speaking, EU-derived law affecting employ-
ment has been preserved and the government has issued pronouncements indicating that it
does not intend to use its power to amend or repeal EU-derived law to dilute workers’ rights.
What the position will be at the end of 2023 remains to be seen. Significant uncertainty has
been created by the Retained EU Law (Revocation and Reform) Bill 2022–2023, which is due
to be considered by the House of Lords in the early months of 2023. In its current form, the
effects of the Bill would include revoking most EU-derived subordinate legislation (unless
the government acts to preserve it), conferring on the government far-reaching powers to
change existing law through subordinate legislation, and changing the courts’ approach to
EU case law and EU-derived legislation. The potential impact of the Bill is not confined to
areas of law relevant to employment, but in this sphere, legislation as fundamental as the
Working Time Regulations 1998 and the retained EU law version of the EU General Data
Protection Regulation could in theory be affected.
The potential for uncertainty inherent in these provisions is increased by the absence of any
clarity as to exactly which pieces of legislation the government intends to preserve and the
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widespread view that the Bill is unworkable in its current form (not least because of the
practical difficulty in reviewing all EU-derived legislation before the end of 2023). The Bill is
expected to attract substantial opposition in the House of Lords, and it remains to be seen
when and in what form it will be enacted.
Industrial action
The year 2022 saw a pronounced uptick in industrial action across a range of sectors, with
strike action by rail, postal, healthcare and other workers garnering significant public atten-
tion. This is likely to continue in 2023. The government’s response has been to introduce the
Strikes (Minimum Service Levels) Bill 2023. If passed into law in its current form, this would
amend the Trade Union and Labour Relations (Consolidation) Act 1992 to give the govern-
ment powers to prescribe ‘minimum service levels’ to be maintained during strike action
in specified sectors (fire and rescue, health, transport, nuclear, border security and educa-
tion). It would also introduce a system of ‘work notices’ by which employers would inform
unions which workers are required to work during strikes to meet the relevant minimum
service level, and remove certain legal protections for unions and individuals in the event
that such notices are breached. The proposals have already proved controversial and are
likely to attract legal challenges if implemented. In what form the Bill will be enacted
remains to be seen.
Covid-19
The effects of the covid-19 pandemic on employment law substantially lessened over the
course of 2022. It is expected that 2023 will see further embedding of the new normal, with
a return to traditional working practices alongside increasingly well-established arrange-
ments for hybrid and flexible working.
Significant disruption to travel during the covid-19 pandemic affected the movement of
foreign nationals to work in the United Kingdom and around the world. While this disruption
is expected to be limited in 2023, restrictions on travel are an ongoing concern for global
mobility planning.
Flexible working
On 5 December 2022, the government published its response to its consultation on flex-
ible working, Making Flexible Working the Default. It has also announced its support for a
private member’s bill, the Employment Relations (Flexible Working) Bill 2022–2023, which
passed its second reading on 28 October 2022. This Bill will be supplemented by secondary
legislation when parliamentary time allows.
The response to the Making Flexible Working the Default consultation confirms the govern-
ment’s intention to introduce several reforms to the regime governing statutory flexible
working requests. These will include:
• making the right to request flexible working applicable from the first day of employment
(removing the current requirement for 26 weeks of service);
• requiring employers to consult with employees before rejecting a flexible working request;
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• allowing employees to make two (rather than one) flexible working requests in any
12-month period; and
• requiring employers to respond to requests within two months (rather than three).
Key aspects of the existing regime will remain in place, such as the current list of business
reasons for rejecting flexible working requests.
Harassment
Having previously announced its intention to introduce a new duty for employers to prevent
sexual harassment in the workplace, on 21 October 2022, the government announced
its backing for a private member’s bill that will have this effect. The Worker Protection
(Amendment of Equality Act 2010) Bill 2022–2023, which is due to have its third reading on
3 February 2023, will amend the Equality Act 2010 to create a new duty for employers to
take all reasonable steps to prevent sexual harassment of employees in the course of their
employment. It will also create employers’ liability for harassment of employees by third
parties and provide for employment tribunals to award a compensation uplift of up to 25 per
cent in cases of sexual harassment where the employer has breached its duty to take all
reasonable steps to prevent such harassment.
Ad hoc legislative changes
A new Employment Bill was originally promised in the Queen’s Speech in December 2019,
but was delayed throughout the covid-19 pandemic and, currently, there do not appear to
be any plans to introduce a new Employment Bill. However, in the second half of 2022,
the government announced its backing for a number of private member’s bills that will
create new workplace protections if enacted. These include the Neonatal Care (Leave and
Pay) Bill 2022–2023, the Carer’s Leave Bill 2022–2023 and the Protection from Redundancy
(Pregnancy and Family Leave) Bill 2022–2023. This ad hoc approach to employment legisla-
tion may continue in 2023.
Matthew Howse matthew.howse@morganlewis.com
Oliver S Gregory
oliver.gregory@morganlewis.com
Condor House, 5–10 St Paul’s Churchyard,
London EC4M 8AL, United Kingdom
Tel: +44 20 3201 5000
www.morganlewis.com
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